29 April 2004

A Week in the Life of a Criminal Defense Attorney

Sunday: About 11:00 I roll into the office to get a jump on a brief in opposition to a prosecution's request for appeal. It is the 12th day after the prosecution filed so I have 9 days to get it done. I spend the day researching and writing at a leisurely pace with the TV on. Then about 5 pm I am reading through the requirements a prosecutor must fulfill to file an appeal and I find buried in them a requirement that I file in 14 days. Gulp! The TV goes off and I order in pizza cuz I'm gonna be there a while. Sometime after 12:30 I finish the draft. Then I spend the next hour or so getting the index of cases and table of contents together. After I finish it off I read it over and it is adequate; of course, by that time of night I would have probably thought that The Jabberwocky was a brilliant bit of analytical work. I e-mail it off to a service which will check my format, dot the i's and cross the t's. Then I go home to bed.

Monday: In the morning, I go watch my federal client being interviewed by the federal probation officer. The best image I can think of to characterize it is that of two scorpions circling each other while going out of their way to remain friendly. The high point of the interview was when the probation officer asked my client why he hadn't stopped dealing after a first conviction and he looked around at me and then probation officer and said, "Then we'd all be out of a job."

In the afternoon I go to the courthouse so that the "paid lawyer " can substitute into the case he'd been hired into on Friday. I meet the guy outside the courtroom and almost immediately have to pull him away from one of the other lawyers who is trying to subtly pump him for information. When court begins the paid attorney and I approach and the motion for substitution is made. The judge looks skeptical and calls the Defendant forward to ask him who his attorney is. The judge has to ask the Defendant twice before he points to the other attorney. Meanwhile, the prosecutor, surveying all the witnesses and the lawyers, says in my right ear, "So, you got out of this mess, did you?" I sit back and watch the prelim and the paid lawyer does a good job. All the charges except two are dropped. Of course, that's exactly what I told the family would happen but I'm sure they felt better spending a few thousand to get the same result.

Tuesday: The morning is pretty standard. A client's possession of marijuana is changed to possession of paraphernalia and he walks out of court with some suspended time. In the afternoon I have a preliminary hearing. My kid is one of three who went to a house tied a lady up and stole stuff out of the house. My client stayed in the car the whole time. Later on all three confessed to the whole thing. One of the others has a possible Miranda issue so that prelim comes to a halt. The prosecutor actually screws up and doesn't introduce the statement of the third Defendant leaving no evidence in his case so his case is dismissed (the prosecutor is going to direct indict). However, the prosecutor does introduce my client's confession made immediately after the detective reads Client his Miranda rights and has him sign a paper stating he understands his rights, all on the video tape. So my client's case got certified to the grand jury. Then I spent the better part of a hour trying to explain to his immigrant parents what happened through my client's sister who is the only person there who actually speaks English and the mother-tongue. Try explaining to people who don't understand English or the court system how one Defendant is getting out of jail today while their son is staying in jail and try doing it through your client's 15 year old sister. Fun.

Wednesday: I come to court in the afternoon for a client who is charged with felony unauthorized use of his girlfriend's car, misdemeanor reckless driving, and felony hit and run. The unauthorized use is getting dropped. I try to get the prosecutor to drop the reckless driving because the client is probably going to get slammed in the Circuit Court on the hit and run (the facts are really, really bad). But the prosecutor just isn't buying it. I finally ask the clerk to call the case and when she does the prosecutor's witness has disappeared. Knowing that the prosecutor can get a continuance, I once again run the idea of him dropping the reckless and my client waiving on the hit and run so that it will go to the grand jury. This time he bites. We explain the deal to the judge and he starts filling out the paperwork reflecting it. Just then the witness comes hustling in. He had been in the restroom. The judge asks the prosecutor if this changes how he wants to deal with the reckless driving and the prosecutor tells him that he wants to withdraw his motion to dismiss. The judge tells me, "Well, Mr. Lammers, I think I have to do it." So my client pleads no contest to the reckless and the judge hears the evidence and it is bad. The judge finds Client guilty and I tell him before sentencing that we are going to appeal so that there is one sentencing event. "Well, you can if you want Mr. Lammers." Then all he does is give my client a fine. Needless to say, we did not appeal.

Thursday: In the morning I go off to a rural court. When I get up to argue my client's case I start out by saying "Your Honor, as you know from reading the memorandum in support of the motion to dismiss . . ." At this point, the judge tells me he hasn't read it. So I basically have to make the entire, rather convoluted, jurisdictional argument orally. At the end the judge looks up and says, "Mr. Lammers you're going to make me have to do some work." Then he tells me after he researches the matter he will issue a written opinion. As soon as the hearing is over I sprint to my car and zoom down the road to get to another courthouse. I get there 55 minutes after the docket began, which is usually plenty of time - but not on this day. The judge had some sort of meeting he had to get to so he had continued my case 5 minutes before I got to court. The judge and prosecutor were still there so we could have done the 10 minute guilty plea but my client had bolted from the courthouse the second after the case was continued.

Friday: I go to court in the morning for a client's show cause as to why he shouldn't get 30 days in jail for not having gone to VASAP after being convicted of a DUI. I explain to the judge that he thought that as long as he didn't get a restricted license he didn't have to go to VASAP but she sends Client to jail for 10 days anyway. A lot of clients make this mistake because the law used to let people not go to VASAP as long as they were willing not to drive while their licenses were revoked (you have to go to VASAP to get a restricted license). Now you must go but there's always a couple buddies out there who got DUI's 5 or 6 years ago who tell the client, "Naw, you don't have to go. All you have to do is wait a year and get your license back." And the client believes them.

As a side note, while I am sitting in court waiting for my client's case to be called the judge starts to sentence someone with a DUI conviction to 12 months jail time suspended for 12 months. The prosecutor stops her and points to me and asks the judge to make the suspended sentence 3 years so that the jurisdictional argument which I made on Thursday cannot be made again. He tells her he's going to call this Lammers' Rule. I've finally made my mark on the world; I can now die a happy man. :-)

28 April 2004

J.S. points out that I am not alone in my belief that Kyllo conflicts with Place et al. He points me toward United States v. Ibarra (2003), wherein the Defendant argues that the presence of a dog at a traffic stop and its use to sniff his car during an admitted pretext stop is unconstitutional. The Court rejects the argument citing Place and United States v. Beale, 736 F.2d 1289 (9th Cir 1984). Then, in footnote 4 it states:

Ibarra's argument that Place is not good law in light of Kyllo v. United States, 533 U.S. 27, 150 L. Ed. 2d 94, 121 S. Ct. 2038 (2001), is an argument we lack power to resolve. Despite the fact that Justice Stevens' dissent argued that the Court's opinion in Kyllo was inconsistent with Place, id. at 47-48 (Stevens, J., dissenting), the Court did not expressly overrule Place. We are therefore bound by Place, unless and until the Supreme Court instructs us to the contrary. See Hohn v. United States, 524 U.S. 236, 252-53, 141 L. Ed. 2d 242, 118 S. Ct. 1969 (1998) ("Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.").

J.S. tells me that the panel which wrote this is conservative and I'll have to take his word on it. I'm just happy that I'm not the only person who sees it.

27 April 2004

J.S. was kind enough to drop me a line in reference to my comments about canine sniffs here and here.

He points out that the Ninth Circuit follows Place. He is correct. I did not mean to leave ya'll with the impression that it doesn't. My point was that the 9th has held that the sniff of a person is an unconstitutional search. In BC v. Plumas County (1999), the 9th doesn't put much original thought into it - it just adopts the 5th Circuit's standard.

He also disagrees with me as to whether the dog sniff language in Edmond is dicta. He says that "[i]t was necessary to resolution of the case, so the Court did not have to reach the search issue." Unfortunately, after having looked over Edmond again I find that I cannot agree with him. I think that part of our disagreement rises from the fact that Edmond is, IMHO, poorly written (yeah, I know it's easy to snipe from the outside). It just lumps searches and seizures in together without deciding the case specifically upon one or the other. However, the interest at stake in a road-block case is an unconstitutional seizure. Curiously, the majority seems to recognize this in its opening paragraph when it talks about "suspicionless seizures at highway checkpoints" but it does not seem able to cleave to the point in its analysis. In determining whether a "suspicionless seizure" for "primarily general crime control purposes" is constitutional it just isn't relevant whether the dog sniff was a search or not.

I may be wrong. I have been before (in fact a judge told me I was today). Still, this is my reading of the issues in a road-block case.

J.S. also pointed me toward what looks like a very interesting case out of the 9th concerning Kyllo and Place. I'm off to read it now. More soon . . .

This needs more research and more thought but I will probably not have the time to revisit it anytime soon. Discuss among yourselves. Replies and/or comments are welcome; they may even be posted.

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First Among Equals, Kenneth W. Starr, p.230:

"‘Enumerated powers' and the Tenth Amendment are key elements of federalism. Federalism . . . concerns the division or distribution of power between the federal government and the states. Madison thought that dividing power between two sovereigns would be better than having just one, because the one would help limit the other. This way, liberty, the ultimate end of the Constitution, would have what Madison called a ‘double security.' This is the core of the Constitution's genius: The existence of two governments would better promote liberty than a single unit."

The question which I pose to you, gentle reader, is whether this system fails when one half of the equation refuses to take up its burden?

IMHO, it does. Currently, the entire Virginia legal system, as it applies to the criminal justice, has opted to not participate in federalism. In particular, the courts have entirely withdrawn from the field. They state over and over again that the rights which were so important when the Commonwealth was founded that they are the very first article of the Virginia Constitution (not an afterthought as in the federal constitution) do not provide any particularized protection to the residents of the Commonwealth. There are no protections which exist under the Virginia Constitution, only those protections offered through "co-extensive" coverage of the federal system. See i.e. Stephens v. Commonwealth, 35 Va.App. 141 (2001). In other word, if it isn't in the federal constitution you are not protected under Virginia's Constitution - no matter how clear a protection may appear.

Now, it was not always this way. Prior to federal intervention and imposition of the federal constitution on the States, Virginia used to take the protection of its residents seriously. Virginia's courts would suppress evidence without any mandate from a court above. For instance, consider Omohundro v. Commonwealth, 138 Va. 854, 863 (1924):

"If the confession . . . is ‘an involuntary one, uttered to bring temporal good or avert temporal evil, even where the anticipated benefit is small (it) will be rejected.'"

The Virginia court adopts this standard from contemporary advisory sources but then goes on to cite Shifflet's Case, 14 Gratt. 652 and Smith's Case, 10 Gratt 734 to show this is a long standing Virginia precedent. However, in the modern era this case would not even be given serious consideration (although I cannot find any case overruling it)

Those who favor a court which refuses to actually interpret the Virginia Constitution often frame their arguments in terms similar to this: A court truly basing its determinations solely on the Virginia Constitution would arrive at standards more favorable to those accused than the federal constitution demands. It would also arrive at standards more favorable to law enforcement than the federal constitution allows. However, law enforcement would be barred by the federal constitution from taking advantage of the extra leeway it would have under the Virginia Constitution. Therefore, it would be fundamentally unfair for the court to actually interpret the Virginia Constitution because it would favor the Accused over the prosecution.

I'll concede every point made in that argument and here's a perfect example:

Va. Const. Art 1 sec 10: That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

Without seeking any redress to case law, as I make a plain reading of that section I come up with these two possible interpretations which would be helpful to the prosecution: (1) "[O]ught not to be granted" could be easily interpreted as a strong statement for a policy preference which could allow exceptions in extraordinary cases. (2) "[E]vidence of a fact committed" and "supported by evidence" could very easily be interpreted as not requiring probable cause. In fact, as I first read this section the first thing that ran through my head was that the Virginia standard for a warrant is merely reasonable articulable suspicion. Yet, law enforcement would be clearly denied the ability to take advantage of either interpretation because such actions are banned under the federal constitution.

However, I do not agree with the argument's conclusion. I probably would if we were talking about equal parties. Yet, in almost all cases law enforcement and the prosecutor enjoy great advantages in personnel, equipment, funds, training, knowledge and experience. Standing the face of this a suspect often has only the mandated protections to prevent massive incursions from overwhelming his life and private affairs.

Art. 1 sec. 7: That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

Would it be a terrible if this section were interpreted so that it overturned the accepted norm of illegally obtained evidence coming in during trial, no matter how grievous the violation, as long as does not violate the federal constitution? It would protect citizens from law enforcement purposefully acting outside the law. Yes, there would be great gnashing of teeth and rending of garments from law enforcement and prosecutors as they swore the world and civilization as we know it is about to come to a disastrous end (case law which disfavors law enforcement apparently being a sign of the apocalypse)1. And then the sun would come up the next day, law enforcement would adjust its techniques, and approximately the same number of people would end up getting convicted each week. Two governments would have preserved liberty by setting limits within which those forces which we must always strive to keep under the control of the citizenry shall behave.

1 BTW - when particularly bad decisions come out of the appellate courts we in the Defense bar do the same thing; it's just that not many people listen to us. And after a while our voices get hoarse from all the yelling so it gets harder to hear us as well.

25 April 2004

23 April 2004

I shall be gone for the next couple days. As soon as I finish my court date this morning, I plan to go off camping near beautiful Buena Vista, Virginia with my dogs. I don't plan on taking the whole weekend off - the laptop is coming along and W&L is just about 15 minutes down the road. So if anybody's reading this from W&L Law and you see a short, round guy in your law school library who looks like he's doing research instead of outlining for finals - it's probably me.

Unsurprisingly, the courts fell right in line with the dicta from Place and Edmond. What has been surprising is the dearth of cases addressing whether a canine sniff of a person is a search. The only authority for the proposition that a sniff of a person is not search comes from the 7th Circuit, Doe v. Renfrow, 631 F.2d 91(7th Cir. 1980), cert. denied, 451 U.S. 1022 (1981). The 5th and 9th Circuits have held that a sniff of a person is a search. The 5th Circuit in particular has long standing, well reasoned precedents holding that the Fourth Amendment applies with its fullest vigor against any intrusion on the human body and a dog sniff is unconstitutional "when there is no individualized suspicion." Horton v. Gross Creek Independent School District, 690 F.2d 470 (5th Cir 1982).

Horton's reasoning foreshadowed the Supreme Court's finding in Kyllo v. United States. In Kyllo the Supreme court holds that there is an added expectation of privacy in a person's house and that "obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search–at least where (as here) the technology in question is not in general public use." The dissent points out that this "would . . . embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics. But . . . a dog sniff discloses only the presence or absence of narcotics does not constitute a search within the meaning of the Fourth Amendment, and it must follow that sense-enhancing equipment that identifies nothing but illegal activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under the Court’s rule." The unstated inference is that Kyllo puts all the case law which has developed from the Place dicta in danger - at least when there is a heightened expectation of privacy. Personally, I am of the opinion that a technological tool and a biological tool are indistinguishable, except perhaps on an emotional level.

The Federal Supreme Court has finally accepted a case which directly addresses the question of canine sniffs in Illinois v. Caballes.

The Case Under Review: The Supreme Court of Illinois reviewed a decision by the Illinois appellate court which held that "the police did not need reasonable articulable suspicion to justify the canine sniff and that, although the criminal history check improperly extended defendant's detention, the delay was de minimis." The Illinois Supreme Court applied a two part Terry test: "(1) whether the officer's action was justified at its inception and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place." As well it stated that "[t]he State bears the burden of establishing that the conduct remained within the scope of the stop." Applying this standard the Court reversed finding "the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation because there were no specific and articulable facts to support the use of a canine sniff."

In my opinion, there is no reason why canine sniffs are different from any other kind off searches. The Federal Supreme Court's unjustified belief that dogs are infallible and will only lead to the exposure of illegal drugs is wrong. If you've been reading this blawg for a while you know I'm in the middle of a case wherein the dog failed to properly indicate one location where drugs were and indicated on one person who was searched and had no drugs on him. While I admire the officer's loyalty to her dog, dogs do make false positives. Although I don't have the case law at my fingerprints (I'm at home at the moment), I recall that cases have held that high percentages of failures are considered acceptable (40% comes to mind but needs verification). [ Addendum:United States v. Limares, 269 F.3d 794 (7th Cir. 2001)(62% accuracy is sufficient).]

Hopefully, the Supreme Court will apply some common sense and rule that canine sniffs are indeed searches, requiring probable cause. Failing that, if the Court persists in its investigative procedure fiction, we can hope that, at the very least, it will approve the Illinois Supreme Court's analysis and require at least the minimal check on canine sniffs of requiring reasonable articulable suspicion based on objective factors indicating drug presence. Or maybe the Court could go way out on a limb and rule that if you pull someone over for a traffic infraction you cannot exceed the scope of that stop in any way unless there is a clear indication of some sort of criminal activity (imagine the howls which would come if traffic stops were limited only to - gasp!! - traffic matters). Yes, I know the third is a crazy pipe dream, but I guess at some level I'm still a little bit of an idealist holding onto the idea that the 4th Amendment means what it says.

22 April 2004

Canine Sniffs: The Search that Isn't

Of late I have had a number of cases involving canine sniffs. They are frustrating since we all know they are searches but the prosecutors and officers know they can get away with sniffs because appellate courts have said they can. As one of them said to me a few weeks back with a happy grin, "Ah, yes, dogs: the search that isn't a search." In the jurisdiction wherein my primary practice is located the street drug officers use this to their maximum advantage. They travel in packs and stop a car because there is an air freshener or rosary hanging from the rear-view mirror (they obstruct the view of the road) or some other reason which judges will pretend is real when they come to court. Often, the officer in uniform stops the car. As soon as the car is stopped the driver and passengers are "asked" or ordered to leave the vehicle "for officer safety." Usually at least two officers are outside the car at this time. Then, while the world's slowest computers are getting the driver's record, the dog is brought forward to sniff the car and people. Because that pesky Fourth Amendment doesn't apply to a dog you don't need a reason to use it to detect things you would never find otherwise.

Where did this all come from?

Well, in United States v. Place, the Supreme Court ruled that if you take someone's luggage for 90 minutes it exceeds the limit of a Terry search/seizure and is unconstitutional. Unfortunately, in dicta, the court reaches out and touches a question which is un-needed for this decision: whether a dog sniff is a search. The court basically states that there is no legitimate expectation of privacy in an illegal activity. It then goes on to opine that because nothing needs to be opened/exposed and the dog will only find illegal drugs it is sui generis and exposing luggage to a dog is not a search under the 4th Amendment. Therefore, no probable cause is necessary for this "Investigative procedure."

They might as well have said, "Release the hounds!!" Dog searches abound and courts back them up. In Virginia the case on point is Brown v. Commonwealth, 15 Va.App 1 (1992)(en banc) which holds (1) that there is no reasonable expectation of privacy in the airspace around a vehicle, (2) reasonable articulable suspicion is not required for a dog sniff of an enclosure which might have drugs, and (3) "[n]othing in the Fourth Amendment prohibits a law enforcement officer from using trained canines to augment the sensory faculties bestowed on the officer at birth."

The first Brown point is just a restatement of the plain view doctrine for odors. If an officer walks up to your car and it reeks of marijuana there is probable cause.

The second Brown point finds some solace in Indianapolis v. Edmond. While finding drug checkpoints unconstitutional, the Court, again in dicta, states that the fact that dogs are walked around the outside of vehicles did not transform the seizure into a search. However, this question has never been directly addressed by the Supreme Court.

The third Brown "supersense" point is just poor reasoning. Almost any investigative tool (constitutional or not) can in some way be characterized as an augmentation of the officer's senses to a point which they could not reach naturally. In Katz, the prototypical 4th Amendment case, the officers listened to a man's conversation through a device attached to a phone booth. This made something audible which an officer without augmented hearing could not hear (evidence suppressed because of reasonable expectation of privacy).

21 April 2004

You'll remember that a while back I published a brief I wrote for a trial court in support of a motion to dismiss under the 4th Amendment. The prosecutor lost and filed a petition for appeal to the Virginia Court of Appeals. In it he changed his argument from "the search of the truck was valid and therefore the search of Ms. Smith was valid" to "the misread of the dog's indication that Ms. Smith had drugs did not remove the probable cause to search her and therefore the search of Ms. Smith was valid."

This was written in a day and therefore it's rough but I think that 90% of it is spot on. The other 10% I wanted more time to research and polish but I didn't have it (you'll find out the reason in next Week in the Life).

Yes, a lot of my work is "just plain gutting it out." Nobody told me in law school that I'd spend most of my time either sitting in court for hours, waiting for my client's case to be called, or driving from one far-flung jail to another because the big trend nowadays is to store inmates in regional jails which are inevitably far away from civilization and even farther away from each other. And, I'm certain no one told me that because my week is spent running that I'd spend large chunks of my weekends fighting the paperwork battle.

However, there are bright points when you can help an innocent or (more likely) overcharged client. There are also low points. I still remember vividly the first time a judge convicted a client whom I believed was actually innocent. I still wonder what I could have done differently.

20 April 2004

A Week in the Life of a Criminal Defense Attorney

Monday: I spend the morning researching a brief. The afternoon is blocked aside for jail visits; the plan is to hit three of them visiting several State inmates and two federal inmates. I go to the local county jail and visit two guys but the third has been transferred to a regional jail in Hopewell, Virginia which I had no intention of visiting. But I have to go there because the guy is getting sentenced the next day and I have to go over his pre-sentence report with him. So I drive about 40 minutes further south and meet with him. The meeting takes a while for reasons I cannot go into because of privilege. Finally, I get out of there and head North driving about 1 1/2 hours north (past Richmond). It's going to be close but it looks as though I'll make it before the jail shuts down at 5 p.m. Then traffic on I-95 just stops. It takes me about 40 minutes to get to the next exit so that I can jump on some country road and try to wend my way to the jail. But it is too late. So I go off to a local eatery and kill time (I didn't even know that Ponderosa Steakhouses still existed) until the jail reopens at 7 p.m. When the jail opens I meet with my client for a relatively short period of time and come back out. I am tempted to try to make it to the last jail but it is at least 1 1/2 hours away and the sky has gotten pitch black with torrents of rain and heavy winds. I decided to go home. Half way there I am driving down I-95 with a semi in front of me, a semi to the left of me and a concrete barrier to the right of me when my driver side windshield wiper jams. Suddenly all I can see are blobs. Hitting my blinkers, I slow way down and luckily there is a break in concrete barrier for an off-ramp. I pull into the parking lot of a seedy hotel and fix my windshield wiper in my suit, in the pouring rain. Then I drive home wet and worried the whole way that the dang thing will screw up again.

Tuesday: I learn a very important lesson on this morn. Just because the feds have my client scheduled for a hearing at 8:30 that doesn't mean he'll be at the courthouse any sooner than 8:15. I arrive, to the incredulous looks of the marshals guarding the front door at 7:45. And then I wait around, go eat some breakfast at the cafeteria, and wait around some more. Finally my client arrives and I talk to him. Then at 8:30 we go into court for an arraignment. It's pretty much pro forma, all my client has to do is say "not guilty" and "jury." He screws it up. But eventually we get it all squared away. Then I have to go over to another courtroom for a guilty plea pursuant to a plea agreement. This actually goes pretty well although the judge asks my client about 500 questions before he accepts the plea agreement. The only rough spot is when the judge asks Client if he knows the maximum penalty for this offense. Now, I went over the guidelines back and forth with this guy but, for the life of me, I can't remember talking to him about the max outside the guidelines. I must have because Client just barks it out like he'd spent the night memorizing it.

Afternoon: One of my charges fails to appear in court for her sentencing. The other is brought to court by the Sheriff's Department. His mother testifies about how much he has changed since he has been in jail. I get up and try to convince the judge that my client (a long time convict and drug addict who stole and cashed checks from his mother) has changed. He was a trustee, he found Jesus in jail, and he has children to whom he has commitments - including one son who was killed while my client was in jail. The the judge asks my client if he has anything to say before she pronounces sentence. He stands up and gives what can only be described as an eloquent, 5 minute long sermon about how he has surrendered his life to Jesus. At the end he asks for leniency. The judge gives him a very studied look and chooses her words carefully: "I never challenge when someone tells me that they've found the Lord in jail. I hope it's true and once this is finished that you will continue to devote your life to Him. However, I often wonder if true Christians would not simply accept their portion in life and not always ask for leniency." Then she sentenced him to 3 months longer than the mid-point (recommended sentence).

Wednesday: The morning is spent completing a brief for a court explaining why the court has no jurisdiction. In the afternoon I jump in my car and drive to a jail 2 1/2 hours from my office. When I get there I find out that my client's parents have hired another lawyer and I turn around and drive back, a little less than happy. After the five hour boondoggle, I spend the rest of the night finalizing taxes. I miss the 8 o'clock deadline at the local post office so I have to drive into some part of Richmond I'd never seen before to drop off the returns. As I roll down my window to hand the posts to the friendly local postmistress, a Libertarian tosses a flier in my lap telling me that taxes are theft. Hmmm. . . I think it is more like a robbery: taking the property of a person by force or threat. Don't believe me? Try not paying Uncle Sam for a few years and see if he doesn't become forceful and/or threatening.

Thursday: In the morning I go to court for a client charged with grand larceny of a truck and driving on a suspended license. Personally, I don't think the prosecutor can prove the larceny because the truck's owners are in South Carolina, already have their truck back, and are rumored to be illegals. They've got my client dead to rights on the driving suspended. I wait around all morning because the prosecutor won't talk to me about the nuts and bolts of the case until the Trooper comes to the criminal courtroom and the Trooper is stuck in traffic court. Finally the Trooper comes over and huddles with the prosecutor and I'm pretty sure the prosecutor comes to the same conclusion I have. So the prosecutor offers to drop the grand larceny to a petit larceny with 30 days jail, along with 30 days jail for the driving suspended. My client has already spent more time in jail than the prosecutor is offering and jumps at the deal.

In the afternoon I have two cases. In the first Client X is charged with his fourth driving on a suspended license. When court starts we approach the bench and ask for a continuance so that Client X can try to get his license in order. The prosecutor objects and the judge turns down the motion.

I go next door and try to get some sense into the head of the prosecutor and street-drugs officer so that they will drop Client Y's possession of marijuana (with intent to distribute) to simple possession and all suspended time. The prosecutor is new and bends to the officer's desire that the charge be kept the same. So I sit around waiting to plead Client Y not guilty (in our local courthouse your reward for pleading not guilty is to have your case called at the end of the docket). I have filed a motion to suppress the evidence because it was obtained in violation of the Fourth Amendment. Since a dog sniff was used to I intend to argue that under Caballes, and Kyllo, and the decisions out 5th and 9th Circuits (well, okay, maybe I wouldn't have mentioned the 9th in an argument in Virginia) a canine sniff of a human is a search. It's a fairly complex argument and the way that General District Courts usually handle complex arguments is to let you argue it on the Defendant's de novo appeal of right to the Circuit Court. So, I'm not really expecting a win but I'm prepped, a little jazzed about the idea of making a real legal argument, and determined to go down swinging. During a break I end up in a friendly argument with about 4 members of the street drug unit as to whether the way that drug dogs are currently used should be unconstitutional. Finally Client Y's case is called. I go up and point out to the judge that I have a motion to suppress. The prosecutor suggests that we do the motion as part of the trial and argue it at the end; I agree and we start the trial. I look over and there's no canine officer. So when the street drugs officer starts to testify that the dog alerted on my client I object and the judge doesn't let him testify as to that because he's not qualified. The officer testifies to everything that occurred other than the things involving the dog. At the end of the evidence the judge looks down and asks the prosecutor if he has any argument as to probable cause which does not involve the dog. The prosecutor tries but there really isn't any. Then the judge looks over at me: "Well, Mr. Lammers, I know the argument you are going to make and I agree. I suppress the evidence and dismiss this charge." NO, No , no . . . the argument I came to court to make involved high-minded constitutional principles and cutting edge application of federal case law!!! I didn't come in to win on evidentiary grounds. I want to make my argument! OF COURSE, I don't say any of this to the judge and I escort Client Y out of the courtroom. Client breaks down crying after we get out.

After I calm down Client Y I run back over to the traffic court for Client X. The officer isn't in the court room and finally, Client X is the only one left in the courtroom. The prosecutor does a quick check and finds out the officer isn't even in the courthouse. I stand up and move that the judge dismiss the case because my client has had to sit three hours in the courtroom after taking time off work, arranging a ride, and riding two hours from his home to face the charge. The judge turns to the prosecutor and asks him what his position is. The prosecutor says to nol pros it (dismiss without prejudice) and they will just issue another warrant later. Everyone in the courtrooom knows this is a form of blackmail; I either agree to a continuance or my client, who has already paid a couple hundred dollars to a bondsman, will be rearrested at some random time in the future, required to go to jail and ask for another bond, and (if granted a bond) forced to pay a couple more hundred dollars to get his bond covered. The judge starts to do this and I get just a wee bit upset.

Me: Judge, we made a motion to continue this case at the beginning of the afternoon. He has kept my client here for hours, and now . . .Judge: No, Mr. Lammers the Court kept your client here. He's not responsible for that.

Ouch. While that's not exactly true (the prosecutor should have continued the case much earlier if his witness was not going to be in court), there's no way I'm winning. After a little more maneuvering I give in and we continue the case for a month until the officer's next date.

Friday: I go to the local police station in the morning and spend about three hours watching a client's videotaped interviews with the officers. The first is pretty bogus. The second is a full confession. I also talk to the detective in charge about the case. The case is a nasty 3 X robbery, 3 X abduction, and 3 X conspiracy which is related to a murder. Between researching the law of the charges and checking the facts and discovery, I have spent a lot of time prepping this case. The preliminary hearing is set for Monday afternoon. I am ready. Naturally, on Friday afternoon another lawyer calls and tells me that my client's parents have hired him (I had been appointed by the court). Dad just was not happy when I told him that his son was going to get convicted on two of the charges. I send all my research to the "paid lawyer" so that the client is not screwed when this guy goes into court cold (there are too many Defendants and lawyers involved so there is no way he's getting a continuance). Not to say that the guy is a bad lawyer; it's just that anybody hired on the last working day before a case of this complexity is not going to be able to get prepared in time.

This was sent to me a while back as an example of why juries are a vitally important part of the system:

Almost a century ago G.K. Chesterton sat on a jury and jotted down his impressions.

"Now it is a terrible business to mark a man out for the vengeance of men," Chesterton said. "But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop."

I must admit that I am somewhat dubious of the quote. It does not strike me as something which a person who has gone to court for one case would likely perceive. On the other hand, it does describe the major danger of a professional court system - especially one which has turned into an assembly line as the courts have in the modern era because of drug crimes.

17 April 2004

Virginia Court of Appeals:

Williams v. Commonwealth - Findings: (1) If an officer pulls you over; you have no license, registration, or proof of who owns the car; and the window is broken the officer can impound the car and search it as a "community caretaker" exception (and you all thought the stake was in the heart of that excuse). (2) If the Defendant thanks the officer for not charging him with possession with intent he is guilty of possession with intent.

Walker v. Commonwealth - Findings: (1) If you try to stick something in the pocket of the girl next to you, cram your hand into your pocket, and then the officer has to order you several times to remove your hand the officer has the right to conduct a Terry pat down. (2) Quantity alone is enough to establish intent to distribute.

Comment: Apparently the appellate court was wondering the same thing I was as I read this opinion: "Appellant did not object at trial, and does not argue on appeal, that the seizure of the items violated the "plain feel" standard enunciated in Minnesota v. Dickerson, 508 U.S. 366 (1993), and Murphy v. Commonwealth, 264 Va. 568, 570 S.E.2d 836 (2002). He argues only that the officer lacked reasonable suspicion for the stop and the pat-down search. Therefore, we do not discuss in this opinion whether the officer had probable cause to seize the items."

Wolfe v. Commonwealth - Although the same exact facts would be used to prove both offenses and the DUI offense specifically provides extra punishment for driving drunk with a child in the car (18.2-270.D) it does not foreclose a conviction of felony child abuse.

Comment: While I think the court might be as right as to separate elements meaning that the two charges are not mutually exclusive, the court seems to indicate that 18.2-270(D) is not a crime of its own but merely a penalty enhancement. If you read the section you realize that it provides for independent punishment for a certain set of circumstances. In other words, if the court sentences you to 12 months in jail for a DUI this section sentences you to a separate 5 extra days if you fulfill the elements it punishes; as I understand Apprendi et al. this means that it is a separate offense.

Seaton v. Commonwealth - Findings: (1) Robbery, "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation," does not require that the robbed be in fear but only the robbed be in apprehension of harm or death in order to fulfill the "intimidation" requirement. (2) The trial judge gets to decide what's relevant in trial. (3) Just because an appellate court has said the law is "X" that does not mean you are entitled to an instruction which states "X."

"Virginia courts have often cautioned against lifting the "language of a specific opinion" for a jury instruction given that an appellate opinion "is meant to provide a rationale for a decision - and may not translate immutably into jury instructions." Va. Power v. Dungee, 258 Va. 235, 251, 520 S.E.2d 164, 173 (1999). We discourage the "indiscriminate use of language from appellate opinions in a jury instruction," Blondel v. Hays, 241 Va. 467, 474, 403 S.E.2d 340, 344 (1991), because "statements appearing in opinions of this court, while authority for the propositions set forth, are not necessarily proper language for jury instructions," Oak Knolls Realty v. Thomas, 212 Va. 396, 397, 184 S.E.2d 809, 810 (1971)."

(4) WARNING UBER-TECHNICALITIES - Although a judgement without the judge's signature is not authenticated (17.1-123) that doesn't matter if the clerk signs it before it is entered into evidence in a totally unrelated case as long as it follows 8.01-389. In plain English, a technically invalid order can be used as evidence as long as it signed by a clerk. Technicality counters technicality. In all fairness to the court it leaves open the possibility that if the objection had been to whether there actually was a conviction or whether the orders were authentic - rather than just an objection based upon their certification - it might have considered those facts.

Elliot v. Commonwealth - Issue: Whether the Virginia should change its interpretation of the inference section of the cross burning statute and whether the inference section is severable. Conclusion: The Supreme Court refuses to change its analysis but does find the section severable.

Comment: The Court's reasoning seems proper -"the statutory provision concerning prima facie evidence of intent to intimidate affects both protected and unprotected speech, and consequently, is overbroad" - but I'd have been a lot happier if I'd seen the words "impermissible burden shifting" somewhere. Of course, the court cannot do this because of all the Virginia statutes which shift the presumption of guilt onto the Defendant, requiring him to prove his innocence.

Virginia Bills passed and signed by the governor which affect criminal law:

SB659, Quayle, repeals Virginia's "blue laws" on Sunday closings.

SB607, Wampler, prohibits licensing a methadone clinic within one-half mile of a day care center or elementary or secondary school.

SB242, Norment, prohibits price gouging by suppliers selling, leasing or licensing goods and services during times of disaster.

HB801, Petersen, makes illegal hazing of gang members.HB404, Janis, allows a concealed weapons permit holder to buy more than one handgun a month and allows a person to buy more than one handgun a month through a private sale.

HB633, Bell, makes videotaping a nude or undergarment-clad minor without his or her consent a felony.

HB667, Bell, reduces the blood alcohol content for drunk drivers from .20 to .15 for purposes of mandatory confinement of 10 days, 20 days for second offense, and requires a mandatory two-day jail term for a blood alcohol content between .12 and .15 percent.

HB848, S.C. Jones, provides $1.225 million in restitution for Julius Earl Ruffin, who was imprisoned for 21 years for a rape he didn't commit.

HB1130, McDonnell, provides for the seizure of a car upon a third drunken driving conviction within 10 years.

Amended by the Governor:

SB333, Stolle, to lift Virginia's 21-day deadline for inmates to introduce previously undiscovered evidence of innocence. (Removes limit of one petition of actual innocence per conviction.)

HB1, Cosgrove, makes it a felony for someone to intentionally kill the fetus of another. (Clarifies that the bill does not restrict access to abortions.)

HB1314, Albo, allows some state-owned liquor stores in northern Virginia and Hampton Roads to open on Sundays. (Technical amendment regarding drafting of rules for Sunday sales.)

16 April 2004

In response to the previous post about how to appeal a standard in the appellate courts I've recieved insight from an old friend:

I think the answer is that you simply raise the issue in the "standard of review" section of your brief. Presumably, your notice of appeal will be the standard, broad one that states that the defendant appeals the sentence (or conviction + sentence). I would think this is like other issues that are simply part and parcel of an appeal, and could never be preserved (and would never need to be) at trial level. For instance, if someone tried to improperly file an interlocutory appeal, you would argue that the appellate court had no jurisdiction--you hadn't argued that below, but you hadn't needed to, either. I think that you should probably also put it in the "issues raised" or "questions presented" section in order to flag it for the Court.

If I understand your question correctly, you are wondering what needs to be done at the trial level to preserve your right to question (on constitutional grounds) a legislatively dictated standard of appellate review. Since the appellate court always has the primary power and obligation to determine what standard it should apply (and to determine its own jurisdiction in the first place), it seems to me that all that needs to be preserved in the trial court is the substantive question that you want to have reviewed. Then, on appeal, you can raise the issue of the applicable standard of review for the first time, saying to the court: “This statute tells us that the standard of review that you [the appellate court] are to apply is standard X. However, that statute is unconstitutional for these reasons . . . so you should instead review this question by applying standard Y.”

I’ll admit I’ve never run into exactly this problem, but the approach outlined above is consistent with the usual principles of appellate practice as I’m familiar with them.

They make sense to me. If anyone has a different viewpoint or has actually dealt with a similar issue feel free to drop a line.

A Question for all of you out there who have a significant amount of experience in appellate law/procedure:

Assuming you want to appeal the constitutionality of an aspect of an appellate standard of review (i.e. tthe Feeney Amendment legislated change in the standard), how would you bring this issue before the appellate court?

It wouldn't seem to be ripe as an objectionable issue during the trial and if you cannot raise the issue at trial how do you get it reviewed?

Urging alternative programs rather than new prisons in Virginia. Because, as we all know, the Virginia Legislature is likely to fund "touchy-feely" programs rather than make a showing of being tough-on-crime and building new prisons to hold more and more and even more people who have been convicted of lesser and lesser crimes. Right.

Caught asking black men to submit to DNA tests without any reasonable articulable suspicion that the individual had done something (it was a dragnet for a serial rapist) Charlottesville's police back off.

"It is not just villains. Crime victims can be staggeringly daft, too. When I worked in the magistrates’ courts we had two youths up for impersonating police officers. A resident had complained about the drunken row they were making and they barged into his house saying they would search it. One of them was 16, the leader was 18 and had one leg shorter than the other. Both were drunk and dressed in dirty jeans and T-shirts. Oddly, it was only when they dropped a vase that the householder got suspicious. But then he was a university lecturer."

12 April 2004

A Week in the Life of a Criminal Defense AttorneyMonday: In the morning I drive out to a regional jail where the federal marshals have stored one of my clients. While there seems to be a policy in place which keeps the feds from storing Defendants within a hour of the courthouse this guys not too far outside that radius so it only takes me 1 1/2 hours to get there. Then I spend a hour in what is quite possibly the worst designed prisoner visitation area I've ever seen while other prisoners stood outside and watched. Then I drive the 1 1/2 hours back. In the afternoon I go to the local court and represent a client with a DUI and driving without a license. The client gets no jail time and walks away happy.

Tuesday: In the morning I represent a girl charged with passing a stopped school bus. Yes, in what was apparently the latest blow in an ongoing family vs. family feud 4 members of a family swore out a warrant and all came to court in order to testify against my client (who was guilty). The prosecutor and I take one look at it and come to an agreement that my client should get suspended time and some community service (a fair deal considering my client's driving record). The judge hemmed and hawed and for a second there I was concerned that he might not take the deal but then he started to lecture everyone about how terrible this sort of thing is and how he understood it was dangerous because he had children to and finally accepted the deal (he even gave my client some extra time for the community service because she was in the middle of college finals). It's weird how I now look forward to the lectures because they usually mean the judge is going to give the client a break. The worst thing I think I've ever heard is when a judge looks down from the bench and says, "Mr. Smith, I'm not going to say anything because I don't think anything I'm going to say will affect you." This is always followed by a stiff sentence.

In the afternoon I have a client who is charged with driving on a suspended license, not having insurance, and not having her car registered. She has paid off all her fines and comes back in with her license, proof of insurance, and proof of proper registration. The prosecutor is happy to drop the two citations but he refuses to reduce the driving suspended charge even though he knows that it will mean her license will once again be suspended (I don't know about ya'll's States but here in the Commonwealth if you even look at the judge sideways we suspend your license). So we go up in front of the judge and I plead my client guilty and soft pitch him by admitting guilt and pointing out what a shame it is that my client has paid over $1,400 to get herself squared away and we are going to take her license right away from her again. The judge floats the idea of reducing the charge to driving without a license so that my client will keep her license and not get 10 days mandatory jail. The prosecutor throws a mini-fit pointing out that my client did nothing more than pay the debts she owed Virginia and shouldn't get rewarded for that. The judge allows as to how that's true then sua sponte reduces my client's charge to driving without a license and gives her a fine.

Wednesday: In the morning I go to court at 8 a.m. - whatever judge first thought an 8 a.m. docket was a good idea should be [congratulated on such a wonderful idea] (yeah, I know I changed what was there originally but I have to go back to those courts). It's a status check on a case which has been going on for as long as I can remember. Virginia claims my client owes it back sales taxes. Client's business folded while she was in the hospital and she has no way to pay this off. There is no real defense except to plead for mercy and the court has finally had it. She is sent to jail for 30 days as incentive. Between these taxes and back child support this lady is probably going to keep going back to jail over and over again in the next few years until the Commonwealth realizes that it can't squeeze blood from a turnip.

Next I drive to Richmond to go to the federal courthouse and pick up some papers and then drop by the prosecutors' office in the high-rise 4 blocks down to pick up some paperwork there. Then I jump in my car and drive over two hours west to Orange County to visit a federal client there. I get to the jail at 11:10 and they will not let me in until 1:00 pm. So I go over to the local Country Cookin' (there's one in every small town in Virginia) and eat the buffet. Then I go visit the local antique shops (every small town in Virginia has those too). Finally I go back to the jail and they let me in. Once I'm let into the visiting room I sit there for 20 minutes and finally I hit the button on the wall speaker. I tell the guard I've been waiting for a while and ask if there is any difficulty. "No sir, Mr. Jones is on his way." Five minutes later my client walks in the door. I ask him when they came to get him and he says, "2 minutes ago."

After meeting with that client for 1 1/2 hours I jump back into my car and travel another 2+ hours to another jail where one of my federal clients is being held. This meeting goes fairly well and only takes 1/2 hour. Then I get back in my car and drive back through Richmond to get to my office 1 1/2 hours later and then call it a day.

Thursday: In the morning I get up and drive 45 minutes out to Beaumont Juvenile Center. This is the place where Virginia throws kids away when it has decided that it doesn't want to deal with them anymore. For the entire time I am meeting with my client he has to sit where a guard can see him through a window and wear shackles on both ankles and one wrist. At first the kid thinks I am a prosecutor but after that is settled we have a fairly productive meeting.

In the afternoon I travel to the federal court in Richmond. I get there a hour early and go meet with my client in the marshal's office. Then I go down to the court and wait around for about 30 minutes until the detective involved shows up. I talk to him for a while and then my client's family shows up and I talk to them until just before the judge comes in. When I get into the courtroom the detention report is sitting on the desk and I start reading through it just as the judge comes in. Then I have to ask the judge for a couple of minutes to read it. The judge asks for positions on detention and (of course) the prosecutor opposes. Then the judge asks me if I have anything to say in light of the fact that there is a presumption against bond. When I say yes his comment is "Hope springs eternal!" Furthermore, when I walk up to the podium he tells me that he has the perfect argument for my client's release. I ask him what and he proceeds to tell me I should argue that my client's prior failures to appear in court were the product of him working too hard and over sleeping. I actually point to a couple of factors in my client's favor but he just isn't going to let my client out.

After the hearing I walk four blocks to the prosecutors' office and get some CD recordings of one of my clients as he is being solicited for a drug deal. You know, I used to wonder why all the City attorneys are skinny. Now I know why. In the suburbs and rural counties I can almost always park with in a minute's walk of the courthouse door. In the City I always have to park at least a couple blocks away from court (further if the Legislature is in session) and I end up walking all over the place from building to building to building. Maybe I should move my office to the City in order to get a daily cardio workout and lose a little weight.

Friday: I go to court in the morning but both of my cases are continued. The first is continued because the trooper was transferred and they subpoenaed him at the wrong address. The second was continued because the certificate of analysis was not returned from the Commonwealth's lab in time. Then I mess around in the courthouse for a while which is pretty lucky because a bond hearing for one of my clients is scheduled for 11:00 am but somehow did not make it into my PDA Calender (the dangers of setting a date over your cell phone as you are driving to Orange county). Still, I am able to get my client a bond which he can make.

In the afternoon I sit in my office doing paperwork. One former client shows up during open office hours and hires me to represent him on a show cause. A 3L who has done some research for me comes by and drops off some papers. Finally, the day ends.

Saturday: I spend 12+ hours in the office. About 1 hour of that is spent watching the video confession of one of my clients. Three-plus hours are spent listening to CD's of another one of my clients as he is being solicited for a drug deal. The remaining time is spent figuring out taxes. The bad news is that I made less money than the year before and for some reason I still cannot figure out a way to convince the government that I should be exempt from its taxes.

Sunday: I go into the office in the afternoon about 2 pm. I leave about 9 pm. In betwixt I prep next week's files, do work on the federal case (including leaving messages which I hope will catch the prosecutors bright and early as they get to their office on Monday), file a ton of papers and files, listen to another hour of my client being solicited for a drug deal, and when I leave the office there is still a big pile of "must do" sitting on my desk. AAAaarrrrgggg!!!!!

"At best it was going to be a hung jury," Ms. Jordan said yesterday in an interview with The New York Times and the CBS News program "60 Minutes II," which will broadcast the interview tonight. "I don't think I would have voted guilty on any count."

She simply did not believe, she said, that the prosecution had proved criminal intent on the part of L. Dennis Kozlowski, Tyco's former chief executive, and Mark H. Swartz, the former chief financial officer, who were accused of looting the company of $600 million through theft and stock manipulation.

"Intent — intent was the center of the whole case, at least for me," she said. "I don't think they thought they were committing a crime."

The woman in Chicago who tried to claim that she had lost a winning lottery ticket worth $162,000,000 gets 50 hours community service, a $1,000 fine and is oredered to pay $5,596.71 in restitution. Her comment?

07 April 2004

I'm sure you've all been waiting with baited breath for me to conclude the previous post - or not. You're getting it either way.

The two remaining themes from the video are:

(3) Prosecutors are now in control of the courthouse: This is a chorus heard often among those who find guidelines and mandatory minimums abhorrent. It is first raised here by Mr. Silver (55:25). Mr. Dillon tries to answer by saying that Congress controls the sentencing process and prosecutors are not the ones in control (1:04:55). The problem is that Silver is talking about apples and Dillon is switching the subject and talking about oranges. Yes, Congress does have the power to set sentencing ranges. Although one suspects that the Justice Department has more influence in Congress than Defense attorneys, the final prerogative lies with Congress.

However, that does not mean that the action taken by Congress is constitutional or just. Congress, by passing the guidelines and mandatory minimums took a great deal of power out of the Judicial branch and bestowed it upon the Executive. How? Why, I'm so glad you asked.

First, we must all realize that the prosecutor has always been, and will always be, a powerful force in the courtroom. By virtue of the fact that he decides what to charge he has a great amount of power over how much jeopardy a Defendant is in. Most of the time a Defendant can be charged with a number of ticky-tack charges on top of the major offenses (or if you're Martha Stewart they can skip the major offenses and just charge the ticky-tack ones). Prior to the advent of mandatory sentences and guidelines piling on charges was at least theoretically held in check by the fact that judges could convict on all 20 charges which the Defendant was guilty of but refuse to impose time for the pile of minor charges which the prosecutor had gone forward on. At this point the prosecutor was a power in the court while the judge was The Power in the court.

The combination of mandatory minimums and guidelines have changed that drastically. There is now a great incentive for prosecutors to pile on charges in order to induce a guilty plea. When ten counts are alleged and six carry minimum penalties of ten years apiece and with a guilty plea under the guidelines the sentence will only carry 10 years it really doesn't make any difference whether the Defendant is the Dumb Driver mentioned in #1 below or the big-time dealer. The Defendant is forced to take exactly the deal as it is demanded by the prosecution (Silver appropriately describes it as an "adhesion contract") and admit to whatever facts the prosecution might choose to put forth (whether they are exactly true or not). The current severe limitations on departures leave the judge more as a clerk stamping in the adhesion contract and putting the mandated penalty on the books than as a neutral arbitrator who is in control of the courtroom and able to provide a check on abuses.

As Ms. Price explains, discretion is going to exist somewhere in the system. It used to be split between the prosecutor as the party which charges and the judge as the party who sentences, with the balance of power in the hands of the sentencer. The sentencing structure which Congress has imposed has moved the discretion almost wholly out of the hands of the judge and into the hands of the prosecutors. (1:11:25) This raises two serious constitutional questions. (1) Is such a power grab constitutional? Can Congress shift the balance of power between the other two branches of government in such a massive manner? (2) Is the system which comes into being as a consequence of this change in who has the discretion a violation of a Defendant's basic constitutional rights to due process and/or trial? Is a Defendant entitled to a realistic opportunity for trial? Even more narrowly, is a Defendant entitled to have a neutral judge sitting as a check to potential charging abuses by the prosecutor or sentences which are non-proportional to those similarly situated to him (see #1 below)?

----------------------------

OKAY, it is extremely late at night. I am dead tired and I have to drive over 200 miles tomorrow because the federal marshals have been kind enough to settle my three current federal clients in different jails scattered all over the Commonwealth. So I'm signing off and going to bed. Ya'll will have to watch the video and form your own opinions on the fourth theme. I'm not really happy with what I've written above but I just don't have the time or enough active brain cells to polish it up. Hopefully it will at least provide some insight into the situation.

Although they are interwoven, four general themes seemed to drive the discussion.

(1) Fundamental fairness issues: Representative Feeney (17:35) and US Attorney McNulty (46:45) both point to how the guidelines are supposed to make sentencing so that people with similar crimes and similar histories get treated the same.

Ashcroft Memo One (49:30) ensures that this is not how things happen. AM1 requires that each Defendant get convicted of the crime which will get him the most severe sentence. This is the conspiracy charge which is the first count of almost every indictment. And if your client is the dummy who drove his cousin to the 7-11 in exchange for a single rock of crack and then, after purposefully not asking what is going on, went into the store to buy some munchies while Cousin sold his 50 g. cocaine base (crack) to the government's informant out in the parking lot your client is on the hook for the same weight as the cousin is. He might get a slight departure as a minor participant but his punishment is surely more similar to the drug dealer's than to another Defendant who buys a rock of crack.

Or your client could go to trial and get three points added for not accepting responsibility and the he could testify and get two points added for obstructing justice. And then he can go to prison for more time than his dealer-cousin.

Late in the discussion Mr. Dillon, frustrated by Mr. Silver's assertion that judges need discretion to actually provide justice in individual cases, blurts out, "Fair is what Congress defined it as under the guidelines." (1:29:40) This is, of course, not true. Congressionally laid out sentencing guidelines are constitutional, or at least the rule of law, but that does not mean that they have anything to do with fairness.

(2) Too many downward departures: A lot of figures get thrown around in discussing this and the argument seemed pretty even to me as presented. The pro-guideliners kept talking about uneven departure rates around the nation and throwing the low departure rates of the 4th Circuit and specifically the Eastern District of Virginia against higher rates around the country and emphasizing how downward departures vastly outnumbered upward departures. The anti-guideliners kept talking about how the average rate around the nation was half what was foreseen when the guidelines were put into law. At the end of the discussion a lady from the audience dealt a fairly serious blow to the pro-guideliners when she pointed out that the reason the Eastern District of Virginia had such a low number of downward departures is because of the rocket docket which means that most of the downward departures occur as Rule 35 motions (post trial motion for reduction) and are therefore not included in the statistics. (1:35:00) On the other hand, USA McNulty pretty convincingly destroyed an argument that the downward departures must not have been too bad because prosecutors weren't appealing them. (1:31:10)

Although not presented in the discussion, a major flaw in the pro-guideliners' argument was its reliance on the fact that downward departures heavily outnumbered upward departures. If you think about that for a couple minutes the reason for it becomes obvious. Prosecutors control the charging process; they will rarely give the judge a reason to depart upward. They are not likely to undercharge someone (for those of you who don't practice criminal law trust me on this one) and even if they don't pile on charges they will have most likely have charged crimes which, under the massive federal penalties, carry a great amount of time. There is really not much of a reason for judges to increase time. However, on those occasions when the prosecution overcharges (rare as we all hope those are) the only true check on that is the judge's ability to depart downward. Note the question from the audience member about how the downward departure rate might denote a serious problem in the harshness of the sentencing. McNulty ducks the question with a Cheshire cat grin. (1:4120) Now, as a politician/prosecutor McNulty cannot concede anything is wrong but when a prosecutor doesn't immediately and vociferously defend punishment it is a pretty clear indicator that things are seriously out of kilter. Mr. Dillon also fails to answer the question; instead he goes totally off point talking about the vote by which the bill to which the Feeney Amendment (and is subsequently made to look fairly silly about it by Mr. Toon).

(3) Prosecutors are now in control of the courthouse:

(4) The change of the standard of review for sentencing guideline cases:

05 April 2004

Woman tells police a man raped her. A group of men go beat up the supposed rapist and he is, by nature of the charge, facing years in prison. Then woman admits the sex was actually consensual. What's her punishment? Probation.

A Week in the Life of a Criminal LawyerMonday: No court scheduled for today. Those of you who read this blog regularly will realize that this was because I was supposed to be on vacation the week before & planned to get back on Sunday. In the afternoon I go hunt down a lawyer I trust, David Clements, and ask him to cover a Tuesday morning case in Chesterfield general district court which conflicts with a hearing in federal magistrate court. Dave's a good guy even if he is the guy who asked me to take a case wherein I had to peruse a "blowjob coupon book" during a jury trial.

Tuesday: I go off to Federal Court for my client's detention and preliminary hearing. I go a hour early because I need to talk with my client. Then I go down outside the courtroom to wait and see if any family or friends show up. A girlfriend shows up shortly and I explain to her what he is charged with and the possible penalties. A short while later my client's mother shows up and I explain everything that is going on to her. Then the prosecutor shows up and he's a guy with whom I went to law school. We chat for a while and he makes the obligatory vague threats that I pretty much ignore.

Then we are allowed into the courtroom and my client's pretrial report is sitting on the table in front of my chair. I pick it up and start reading and a minute or so into that the marshal asks me if I am ready but I'm only half way through so everybody has to wait on me (oh joy - no pressure there). I finish reading and the Magistrate Judge comes in. We have the hearing and I tilt at the windmill of trying to get my client released to his mother but the judge doesn't buy it. I get out of court, jump in my car, and burn rubber for the courthouse in Chesterfield County.

When I get to Chesterfield, I go into the courthouse and a buddy of mine laughs at me, telling me that Dave ''lost your client" (but won't elucidate further). A little concerned I start hunting Dave but he's not in the courthouse.

In the afternoon I first go to Circuit Court and the sentencing hearing there is continued because the case had been transferred to a different judge and the prosecutor wants the original judge to sentence. When I get back down to the General District Court I walk in just in time to find my client's co-defendant and his attorney in front of the bench. The judge calls me forward and tells me that the case is being continued because the co-defendant wants to get a witness to court. My client's going to be in jail until after the new date (and I want that witness too) so I agree with the continuance. I follow my client back into lockup and talk to him for a few minutes then I go out to the hall outside the courtroom to explain what is going on to my client's parents. As soon as I start talking with the parents a deputy sticks his head out of the courtroom and tells me my last case is being called. I hustle back into court, have a preliminary hearing for a grand larceny shoplifting (a forlorn hope; she confessed and had lots of stuff on her person). Then I go back out and talk to my prior client's parents who have waited patiently and are gracious; they know nothing about the criminal system which is actually somewhat refreshing. I spend about 15 minutes talking to them about the case and explaining how they can arrange a bond.

Finally, I go hunt Dave down and he explains what happened in the morning. My client came to court and spoke with Dave. They got everything squared away and Dave (who had several cases that morning) went off to handle a couple other short cases while Client was to wait for him in court. Meanwhile, my client's case got moved to another courtroom in front of another judge. Dave comes back and Client is gone. Being adept at figuring out what's going on in Chesterfield courts Dave figures it out pretty quickly but when he goes over to the other courtroom Client is not there either. Dave hunts around a little further and finally a clerk tells him that Client's case got called before Dave had figured out where Client was. Client went up and was kind enough to explain to the judge that I was in federal court this morning and could not be in Chesterfield. Apparently he left out the part about me arranging for another attorney to represent him. Consequently, the judge granted him a continuance and he left the courthouse.Wednesday: One case in the afternoon: a DUI. The poor guy is a long time member of AA from Boston who was stuck, alone in a motel while traveling and went to the local eatery which turned out to be a big time bar as well. He falls off the wagon and gets caught driving back to his hotel room. He had a BAC of .26 which requires a mandatory 10 days jail time. This much I know from the complaint as I walk into the courtroom. Then I go over to talk to the officer involved. The officer tells me that Client had been spotted by an off duty trooper who followed him as he was driving down the road and plowed into a mailbox and watched him until the officer arrived. The trooper is in court and confirms all this. That's a bit of a shock when you walk in thinking you have just got a normal run-of-the-mill DUI. We go in front of the judge and I do my best tap dance pointing out how my client has come back to Virginia from Boston 3 times in order to get this taken care of, how he's back in AA, etc. The judge looks skeptical but in the end only sentences the guy to the mandatory jail time.

Thursday: I go to court in the afternoon for a petit larceny. I walk up to the clerk and she asks me what I'm going to do in the Smith case. When I look at her with a blank face and say, "What Smith case? I'm here for Jones," she pulls out court papers from her file and hands them to me. Sure enough, the Smith case is set for today. I pull out my trusty PDA, search the calender, and find out that I have the case scheduled for two weeks from today. So I check the papers a little more closely and find that the old date had been scratched out and the current date put in its place. Apparently, I was never notified (or at least I did not note it; I am more often the source of error than the clerks) and the papers which were sent to my client's address came back unserved. So that case got continued. I talk to the officer in the case and he tells me that Client was having an argument with his father in front of the officers and Client grabbed father, at which point the officers "laid hands on him." This is a term of art used by police officers which means tackled, cap-stunned, wrestled into handcuffs, and dragged out of the residence.

Having finished talking to officer Greenlowe about the case that's being continued I ask him about the petit larceny case. He tells me it's not his case. Confused, I open the folder and look at the papers. Yep, they say Greenlowe. I'm just about to tell the officer that I'm pretty sure it's his when he smiles and tells me it's his wife's case and points me to a female officer sitting behind us. Okay, whoever thought that putting two officers with the same, fairly distinctive name in court on the same day should get 50 lashes with a wet noodle. It turns out that Client, who has no record, put a few things in a basket at Wal-Mart walked right past the cashiers and out the door. When she was caught she offered to pay and had the money in her pocket. In the end, I'm able to get her community service, shoplifting classes, and her charges will be dropped if she doesn't get in trouble for six months.Friday: In the morning I sit around at the Powhatan Court and make myself available for court appointed cases; none are assigned to me but that's just because there are too many honest people in Powhatan. Then in the afternoon I am at my office for my open office hours but nobody shows up. I get a fair amount of paperwork done and try to set up jail visits for Saturday but one jail won't let me, neither will a detention center, and the Central Virginia Regional Jail didn't seem to have anyone answering the phones after 3 p.m. So all the visits get shoved into the next week.

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.